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To Appeal or Not Appeal – That Is the Question

By: Tara Said, Partner, Pensacola

You worked up your case, felt you had great defenses and just knew that the Judge would buy into your argument. You lined up your witnesses and timely filed everything you were going to rely on. There is no way you could lose this hearing. You put on your case, and then wait. The Order comes out and you quickly scan to the bottom and lo and behold, not only did you lose the one issue that you felt you had a slam dunk on but lost all issues raised at hearing. You have that difficult discussion with your client and they ask, what went wrong? Should we appeal? Now comes the difficult part. It is important to do a full assessment of the risks and long reaching effects that appealing a final order can raise.

First, know your time frames. You have 30 days from the day the Judge issues the Order to file your appeal notice. Is there an issue or matter that looks like the JCC might have missed or overlooked that would give rise to a Notice of Rehearing or Motion for Clarification if needed? Note that these kind of motions do not stay the time for your appeal to be filed.  The filing fee is $300.00. The party bringing the appeal will file a Designation of Record, telling the court what should be included in the record on appeal. It is always wise to make sure anything proffered, even if not entered into evidence, is included.  The record will be prepared within 60 days of the designation. Once prepared, the appellant (person bringing the appeal) has 30 days to file their Initial Brief, the appellee then has 20 days to respond, and then the appellant gets one more bite at the apple to file a Reply Brief within 20 days. If any party has requested oral argument, the court my or may not grant it, or the court may request it on their own.

 The standard of reviews the court will apply which will need to be identified on the issues raised on appeal are either competent, substantial evidence, de novo, or abuse of discretion.  Did the decision turn on the evidence, a new standard/application or interpretation of law, or did the judge abuse his or her discretion in making their decision? These are important issues to discuss so that you can weigh the decision to appeal or not. It is a good idea to have a discussion between the attorney and the adjuster as to what should be brought up on appeal and the basis for the appeal, and once clarified, sit down with an independent person who knows nothing about the claim, lay out the scenario, and see if they agree that it looks like there was error in the decision rendered.  Ask what are the far reaching effects if you do appeal and create possible bad case law? What is the cost to appeal – is the appeal being brought on principle versus error in law and has the financial cost to the claim been considered? Some claims can be so detailed or have many moving parts that can get you emotionally involved and you need to make sure that emotions do not play into the decision to appeal or not. Also note that if you do decide to appeal, use those opportunities to determine if there is an interest to mediate and settle. You can always withdraw the appeal should you reach a resolution on a claim. In my experience, I have found that the cost for an appeal can run anywhere from a low of $7,500 to almost $30,000.00 (including filing fees, cost of the record on appeal, attorney fees, and if there is oral argument, preparing for it and presenting the case). There is no provision for the E/C to recover their attorney fees back from the injured worker if they prevail so all of these factors must be taken into account.  In summary, take the time to do a thorough analysis, seek advice, and get a second opinion when you are addressing possible appeals.

Enjoy this Thanksgiving Recipe!

Turkey  sliders with Gruyere

What to do with all of that leftover turkey? Shred it into turkey gravy, take a package of King’s Hawaiian  sweet rolls, line a pan with the bottoms, put some of the shredded turkey on it in the gravy and then place a small square of Gruyere cheese on top of that. On another cookie sheet lined with foil, place the bun tops, brush with melted butter and sprinkle with sesame seeds. Place both pans under the broiler on low until the cheese is melted and the bun tops are toasted.  Take them out of the oven, put a spoonful of cranberry sauce on top of the cheese on each small sandwich and then top it with the toasted bun. Voila! The perfect thing to do with leftovers and perfect for afternoon football finger food!